The military judge presiding at the Sept. 11 trial Thursday ordered the government to unplug any outside censors who can reach into his courtroom and silence the war crimes tribunal.
Only a court security officer sitting in court, at the judge’s elbow, has the authority to hit a mute button on the proceedings if there’s a suspicion that national security information could be spilled, Judge James L. Pohl announced.
At issue was a mysterious episode Monday when the sound to spectators was suddenly replaced by white noise in court after 9/11 mastermind Khalid Sheik Mohammed’s attorney David Nevin said the word “secret.”
Nobody inside court did it. The judge erupted in anger, and appeared surprised that “some external body” had the power to prevent the public from listening to the proceedings — which are broadcast in the spectator’s gallery on a 40-second delay.
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“This is the last time that will happen,” the judge said Thursday. “No third party can unilaterally cut off the broadcast.”
The court was just beginning to tackle a defense request that the judge issue a protective order on whatever remnants exist of the CIA’s secret overseas prison network. President Barack Obama ordered those facilities closed on taking office.
Defense lawyers say the five men now charged as the alleged plotters of the Sept. 11, 2001, hijackings were tortured at those places. The chief prosecutor, Army Brig. Gen. Mark Martins, says no evidence obtained other than voluntarily will be used at their death-penalty trial.
Pohl never once mentioned the CIA, the agency that controls information about what happened to alleged mastermind Mohammed, who agents waterboarded 183 times, and his four co-defendants. Instead, he referred to the “OCA” — short for the original classification authority — a generic term for any agency of the U.S. government that stamped a document or declared a program Top Secret.
“This is the last time that an OCA or any third party will be permitted to unilaterally decide if the broadcast should be suspended. The OCA, any OCA does not work for the commission and therefore has no independent decision-making authority on how these proceedings are to be conducted.”
“An OCA does not work for the commission,” he said, using the Pentagon term for the war court, “and has no independent decision-making authority on how these proceedings are to be conducted.” On Tuesday, civilian 9/11 prosecutor Joanna Baltes cast the role of the OCA as an approved extension of the military commissions.
“The OCA, original classification authority, reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed,” she said in a note to the judge. “When the parties do press the mute button on the microphone, no audio is transmitted through the closed feed.”
It was not immediately clear if the judge would order the prosecution to present a witness to swear that outside censor buttons had been unplugged. Defense lawyers asked the judge to have the war crimes prosecutor certify it, once done.
In another major decision, the judge ordered the Pentagon’s most senior official responsible for the war court, retired Vice Adm. Bruce MacDonald, to testify in a pre-trial hearing the week of Feb. 11. Pentagon prosecutors had opposed the testimony of MacDonald, whose formal title is “convening authority” and whose responsibility includes reviewing charges sheets and approving prosecutions.
Defense lawyers want Pohl to throw the case out because of “unlawful command influence,” a military expression for inappropriate meddling by a senior officer. MacDonald becomes the most senior U.S. government official ordered to testify at Guantánamo. Martins, the chief prosecutor, said MacDonald would testify in person at the court rather than by video-teleconference.
The drama of the day occurred out of earshot of the five men accused of conspiring in the Sept. 11 hijackings that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. Mohammed and the others declined to attend the hearing, a pre-trial prerogative the judge has granted them, and also declined an offer to listen to him remotely.
Monday’s outside censorship episode occurred on the first day of proceedings after the judge formally approved the 40-second audio delay in the Sept. 11 trial, rejecting an American Civil Liberties Union argument that it transformed a live court into a “censorship chamber.”
The way the Guantánamo war court works is, spectators watch the proceedings live inside a soundproof room at the back of the court, hearing the audio 40 seconds later. If the court security officer functioning as a censor deems what is being said is a national security secret, he pushes a button and obscures the sound with white noise.
A red emergency light then spins in court to signal to everyone inside the tribunal chamber that the outside world can no longer hear them.
White noise has silenced the court three times since Mohammed and his fellow defendants were arraigned on May 5, and in each instance the judge or prosecutor concluded it was not legitimately censored, or “closure” as the lawyers and judge refer to it. All three instances occurred while defense lawyers were speaking — two of them U.S. military officers arguing to the judge in uniform.
Verbatim | Judge James Pohl’s cease-and-desist order
“I order the government to disconnect any ability for any third party to suspend the broadcast of these proceedings and also no third party to unilaterally suspend the broadcast of these proceedings. We will not delay today’s proceedings to disconnect the outside feed or the ability to suspend the broadcast, but this order is effective immediately.”